At Last, the Issue is Publicly Joined . . . and When All the Smoke has Cleared, the Central Question is Quite Simple

Marty Lederman

And it is this: Should the CIA be legally authorized to breach the Geneva Conventions by engaging in the following forms of "cruel treatment" prohibited by "common" Article 3(1)(a) of those Conventions?:

-- "Cold Cell," or hypothermia, where a prisoner is left to stand naked in a cell kept near 50 degrees, during which he is doused with cold water.

-- "Long Time Standing," in which a prisoner is forced to stand, handcuffed and with his feet shackled to an eye bolt in the floor for more than 40 hours.

-- Other forms of "stress positions" and prolonged sleep deprivation, perhaps akin to "Long Time Standing."

-- Threats of violence and death of a detainee and/or his family.

(These are the CIA techniques that have been widely reported, including in this ABC News Report and in Ron Suskind's book. To the extent some of these techniques are not among those that the President is now euphemistically designating "alternative," or to the extent the Administration is attempting to preserve other techniques currently prohibited by Common Article 3, the burden is on the Administration to clarify the record. They have resolutely refused to disclaim any of these reported techniques, and so I think it's fair for Congress and the public to assume, absent contrary evidence, that these are among the techniques at issue in the current debate. If we're going to authorize conduct currently prohibited by the Geneva Conventions, we ought to know just what we're signing on for.

What about waterboarding? My sense is that the debate is no longer about waterboarding. I have heard scuttlebut from several sources that not even the lawyers in this Administration -- who apparently were able to conclude that waterboarding was not torture -- have been willing to say that waterboarding is legal under the McCain Amendment's prohibition on conduct that shocks the conscience. Therefore, I think (but am not certain) that waterboarding has not been a viable option since December 30, 2005 -- which explains, perhaps, why the Vice President was so insistent on creating a CIA exception to the McCain Amendment, i.e., because he thought that waterboarding could not continue without such an amendment (or a Commander-in-Chief override).)

A bunch of other questions that have been dominating the public debate really ought to fall to the side now.

The key question is no longer about the Pentagon, and Abu Ghraib, and the instructions to Geoffrey Miller that led to abuses in Iraq and Afghanistan, and the abuses of the "special operations" forces established by Rumsfeld and Cambone and Boykin, etc. The military has, at least for the time being, cleaned its house, and the prospects for abuse there have been greatly diminished, thanks in large part to the JAGs and to legislators such as Senators McCain and Graham.

Which is not to say that there does not remain a great deal of historical accounting to be done about what occurred in the military. But going forward, the operational question involves the CIA, not the Armed Forces -- which is fitting, because it was CIA interrogations that started this whole mess in the first place, that prompted the initial flurry of tendentious legal memoranda, and that have driven so many of the policies and legal assertions of this Administration.

Nor is it about Guantanamo.

Nor is it about the authority of interrogators to yell at detainees, or subject them to Eminem or the Red Hot Chili Peppers.

Nor -- contrary to the Administration and to many press accounts -- is it primarily about the meaning of Geneva's prohibition on "outrages against human dignity," and "humiliating and degrading treatment." The CIA isn't much interested in the outrageous and inane forms of humiliation -- underwear on the head, religious degradation, etc. -- that the military used at GTMO and in Iraq. Those things may be illegal, they might violate Common Article 3, but they are not what the Administration is tring so diligently to preserve. The Administration is, instead, seeking authority to use threats of violence, and the cruel physical techniques listed above, akin to classic forms of torture.

That is what this current legislative debate is about.

It's important to be clear about one thing: The question is not simply whether, in the abstract, it would be a good or acceptable idea for the United States to use such techniques in certain extreme circumstances on certain detainees. I happen to think that the moral, pragmatic, diplomatic and other costs of doing so greatly outweigh any speculative and uncertain benefits -- but that is obviously a question on which there is substantial public disagreement, much of it quite sincere and serious. Instead, the question must be placed in its historical and international context -- namely, whether Congress should grant the Executive branch a fairly unbounded discretion to use such techniques where such conduct would place the United States in breach of the Geneva Conventions. And that, of course, changes the calculus considerably. Does Congress really want to make the United States the first nation on earth to specifically provide domestic legal sanction for what would properly and universally be seen as a transparent breach of the minimum, baseline standards for civilized treatment of prisoners established by Common Article 3 -- thereby dealing a grievous blow to the prospect of international adherence to the Geneva Conventions in the future?

It would be one thing -- a momentous thing, no doubt -- for the United States to propose that Geneva itself be amended to permit certain extreme interrogation techniques in certain limited circumstances. In that case, the principal question would be whether torture and its close equivalents are ever acceptable, and whether they could and should be regulated under a legal regime that would somehow keep such techniques within "proper" bounds, if there are any. But as the issue now stands, the advisability and morality of such techniques, as such, and the practical questions of regulating such conduct, although obviously of great importance, are overshadowed by an even more solemn question: whether legalizing such techniques is worth an effective repudiation of Geneva by the most powerful state on the planet, with all that such a repudiation would entail for the future of Geneva and other international agreements.

(Yes, the Administration bill would nominally "interpret" the Geneva Conventions to permit the CIA techniques. But this is a pretense that not even the Administration itself believes. Most of these techniques are probably "torture," as that term is understood under Common Article 3 -- and would have universally been considered torture by virtually all of the Western world until Bush Administration lawyers got their hands on the dictionary. But even if for some reason these techniques fall short of torture, they surely are "cruel treatment" under Article 3(1)(a); indeed, if they are not, it's hard to imagine what would be. That's why the Administration has conceded that without its proposed legislation, Common Article 3 of Geneva prevents the continuation of the CIA's "alternative" techniques. And it's why the Administration bill would purport to prevent any judicial consideration of whether such techniques violate Geneva -- because such an argument manifestly would not withstand judicial review.)

Common Article 3 of the Geneva Conventions provides the minimum standards for humane treatment and fair justice that apply to anyone captured in armed conflict. These standards were specifically designed to ensure that those who fall outside the other, more extensive, protections of the Conventions are treated in accordance with the values of civilized nations. The framers of the Conventions, including the American representatives, in particular wanted to ensure that Common Article 3 would apply in situations where a state party to the treaty, like the United States, fights an adversary that is not a party, including irregular forces like al Qaeda. The United States military has abided by the basic requirements of Common Article 3 in every conflict since the Conventions were adopted. In each case, we applied the Geneva Conventions -- including, at a minimum, Common Article 3 -- even to enemies that systematically violated the Conventions themselves.

We have abided by this standard in our own conduct for a simple reason: the same standard serves to protect American servicemen and women when they engage in conflicts covered by Common Article 3. Preserving the integrity of this standard has become increasingly important in recent years when our adversaries often are not nation-states. Congress acted in 1997 to further this goal by criminalizing violations of Common Article 3 in the War Crimes Act, enabling us to hold accountable those who abuse our captured personnel, no matter the nature of the armed conflict.

If any agency of the U.S. government is excused from compliance with these standards, or if we seek to redefine what Common Article 3 requires, we should not imagine that our enemies will take notice of the technical distinctions when they hold U.S. prisoners captive. If degradation, humiliation, physical and mental brutalization of prisoners is decriminalized or considered permissible under a restrictive interpretation of Common Article 3, we will forfeit all credible objections should such barbaric practices be inflicted upon American prisoners.

* * * *

Last week, the Department of Defense issued a Directive reaffirming that the military will uphold the requirements of Common Article 3 with respect to all prisoners in its custody. We welcome this new policy. Our servicemen and women have operated for too long with unclear and unlawful guidance on detainee treatment, and some have been left to take the blame when things went wrong. The guidance is now clear.

But that clarity will be short-lived if the approach taken by Administration’s bill prevails. In contrast to the Pentagon’s new rules on detainee treatment, the bill would limit our definition of Common Article 3's terms by introducing a flexible, sliding scale that might allow certain coercive interrogation techniques under some circumstances, while forbidding them under others. This would replace an absolute standard – Common Article 3 -- with a relative one. To do so will only create further confusion.

Moreover, were we to take this step, we would be viewed by the rest of the world as having formally renounced the clear strictures of the Geneva Conventions. Our enemies would be encouraged to interpret the Conventions in their own way as well, placing our troops in jeopardy in future conflicts. And American moral authority in the war would be further damaged.

This is not to say, of course, that the various other statutory proposals now being debated do not raise other serious questions. Of course they do, such as: whether FISA should be eviscerated, or much more carefully amended; whether Congress should, or constitutionally can, withdraw the right of aliens detained overseas to petition for habeas corpus; how the military commissions should be constituted; how "unlawful enemy combatants" should be defined for purposes of the authority to militarily detain such persons; whether "conspiracy" and "material support for terrorist groups" can and should be designated crimes triable outside the ordinary criminal process; etc.

These and other questions are incredibly important. But the big-ticket item -- indeed, the issue that has been driving many of those other debates, such as the rules for commissions -- is whether the CIA should be authorized to engage in "cruel treatment" in breach of our obligations under the Geneva Conventions.

My analysis is that Congress has no authority to authorize violations of Geneva in the first place.

(1) Each of the four Geneva conventions contains a clause on denunciations, which states:

"Each of the High Contracting Parties shall be at liberty to denounce the present Convention.

"The denunciation shall be notified in writing to the Swiss Federal Council, which shall transmit it to the Governments of all the High Contracting Parties.

"The denunciation shall take effect one year after the notification thereof has been made to the Swiss Federal Council. However, a denunciation of which notification has been made at a time when the denouncing Power is involved in a conflict shall not take effect until peace has been concluded, and until after operations connected with the release and repatriation of the persons protected by the present Convention have been terminated.

"The denunciation shall have effect only in respect of the denouncing Power. It shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience." GC III art. 142, GC IV art. 158.

Under the supremacy clause, that is US law, and the principle that one does not change or suspend the rules during an armed conflict is nothing new. The very first US treaty that touched on this was the 1785 Treaty of Amity and Commerce with Prussia, which states:

"[I]t is declared, that neither the pretence that war dissolves all treaties, nor any other whatever, shall be considered as annulling or suspending this & the next preceding article, but on the contrary, that the state of war is precisely that for which they are provided, & during which they are to be as sacredly observed as the most acknowledged articles in the law of nature or nations." Id. art. 24.

(2) Even if you make the Geneva conventions vanish, what remains are the Nuremberg Principles and customary law going back to Hague 1907, the Lieber Code (1863), and beyond.

The Bush administration's war crimes will still be crimes against humanity, and any effort by Congress to provide them cover for those crimes will also be a crime.

What people need to understand is that no terrorist is as a great a threat to us as a government that will not obey our own laws. Bush and Cheney are criminals, and that is all that they are.

"The question is not simply whether, in the abstract, it would be a good or acceptable idea for the United States to use such techniques in certain extreme circumstances on certain detainees. ... [T]hat is obviously a question on which there is substantial public disagreement, much of it quite sincere and serious." Really? Perhaps it is a serious question if we limit ourselves to a "ticking bomb" hypothetical. The language "certain extreme circumstances on certain detainees" amounts to a "ticking bomb" hypothetical, because, in reality, if torture is allowed, it will be used indiscriminately, as it has been. In the real world, whether torture is good does not seem to be a question upon which reasonable people differ. There seems to be unanimity among reasonable people that torture produces no valid intelligence and serves no purpose except putting our soldiers at risk. Bush and Cheney's contrary view can be explained only by their particular psychological needs.

So, if we were to use techniques like those used against the mastermind of the 9/11 attack -- techniques that even Graham and McCain acknowledge allowed the U.S. to stop additional attacks inside the U.S. -- we should not use them because they could be construed as being in violation of of the Geneva convention.

I think the appropriate phrase is that our Constitution is not a suicide pact. The Constitution trumps the Geneva Convention so I'll go with it.

If we use techinques that have proven successful in stopping attacks, we should use them.

It is a false premise that doing so will ut our soldiers in greater danger. When the militant Islamists capture our soldiers they behead them -- they certainly do not follow the Geneva Convention.

President Bush repeatedly asserted today at his press conference that the problem is merely one of ambiguity, that all the CIA is seeking is clarity about what Common Article 3 prohibits. (At the same time, he and his administration have refused to say specifically what interrogation techniques "the program" has employed.)

As I understand it, DOD just clarified with specificity in the new field manual what is prohibited. Why cannot the War Crimes Act simply reference that same specificity?

Isn't it because Bush, Hayden and other executives know -- but are afraid to say out loud -- that the CIA techniques unambiguously violate those specific standards?

It is not simply a matter of whether militant Islamists behead American POWs. The following, pasted from Andrew Sullivan's blog, is from a marine describing his experience in Desert Storm:

If those men had even put up token resistance, some of us would not have come back. But they didn't even bother, and surrendered at least in part because of our reputation. Our two hundred year old reputation for being fair and humane and decent. All the way back to George Washington, and from President George H.W. Bush all the way down to a lance-corporal jarhead at the front.

Its gone now, even from me. I can't get past that image of the Iraqi, in the hood with the wires and I'm not what you'd call a sensitive type. You know the picture. And now we have a total bust-out in the White House, and a bunch of rubber-stamps in the House, trying to make it so that half-drowning people isn't torture. That hypothermia isn't torture. That degradation isn't torture. We don't have that reputation for fairness anymore. Just the opposite, I think. And the next real enemy we face will fight like only the cornered and desperate fight. How many Marines' lives will be lost in the war ahead just because of this asshole who never once risked anything for this country?

I think the appropriate phrase is that our Constitution is not a suicide pact. The Constitution trumps the Geneva Convention so I'll go with it.

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." -- Article VI

For all the talk of suicide pacts, there appear to be people who don't mind torturing the Constitution to death.

Although the exact details of this program might change, more important is the arguments used by George Bush to push it through Congress: that these harsh techniques will prevent future attacks.

Think about this: we are not safe from 20 guys with box cutters!

What attack is Bush talking about? Another 9/11?

If our security relies upon us catching a terrorist who is planning an attack or knows the details of an attack, we should all be very afraid. Because what limit is there? This belief that we need to catch and torture people to ensure we don't get attacked again means that nobody is safe.

The argument is essentially that our government can do anything if they think it might prevent an attack.

During the Second World War in Europe, at its very end, the Wehrmacht was far more likely end resistance before the British, French, and American forces, which had a reasonable reputation for humanity, than before the Soviets, who had raped and murdered from East Prussia and Pomeriania on. This fact saved American lives.

And, really, if these techniques are all that effective and efficient, why not use them for everything? Homicide investigations, child molestation investigations, down even to that, in any Republican's eyes, most forgiveable of crimes: tax evasion. I'm surprised at Bush's reticence. What a piker.

Bush people appear dead scared of being held legally responsible for they misdeeds once a new Congress and administration take charge of things, and this appears to be the primary motivation for almost everything they do these days.

Evidence for it is everywhere.

Take Specter for example - it is now quite clear that his primary goal was to protect Bush from legal consequences of his violations of surveillance statutes. Everything else in his bills is either a smoke screen or legal padding to hide his true intentions. And they are obviously quite desperate about it as witnessed by Spoecter's reckless willingness to take the country back (via his bills) to pre 1978, Hooverian days or by his public lies about including explicit blanket amnesty for Bush in his bill.

The current discussion likely has a similar origin. It seems CIA concluded that they could be facing open courts ("War Crimes Act") once Bush is gone, so they went to their old boss papa Bush who out of sense of loyalty committed himself to get Junior to do something about it. And as seen yesterday Junior accepted the challenge wholeheartedly. "Partners in crime" so to speak.

The need to shield the CIA for their deeds not the future "effectiveness" of CIA interrogators is what is really driving Bush here.

There is another aspect to all this apart from international fallout if Congress accedes to Bush's demands and that is why on earth only CIA should be permitted such techniques?

FBI after all is as good an agency as CIA and they may need to resort to "alternative" techniques when interrogating serious domestic "terror" suspects too. Think Mayfield or some eco-terrorists for example.

Same thing applies to local police, being able to "force a prisoner to stand naked in a cell kept near 50 degrees, during which he/she is doused with cold water" would do wonders to the effectiveness of local law enforcement agencies in serious domestic cases.

And finally, as Lederman I see no connection here to Geneva's prohibition on "outrages against human dignity," and "humiliating and degrading treatment."

Let us be honest, if we really considered ourselves bound by Geneva as far as human dignity is concerned we would have to close down almost all of our prisons and, sadly, defrock quite a number of judges out there.